Prosecution must prove foundational facts of age and assault before invoking Section 29 POCSO presumption.

The Appellant was convicted by the trial court for aggravated penetrative sexual assault under Section 5(l) r/w 6 of the POCSO Act and criminal intimidation under Section 506(ii) of the IPC

The prosecution alleged that on 09.12.2019 and 14.12.2019, the Appellant (aged 55) took the victim (PW2, allegedly aged 16), who suffered from mental health issues, to his house and committed forcible sexual assault

A complaint was filed by the victim’s mother (PW1) on 16.12.2019

The trial court relied on the victim's testimony and the statutory presumption under Section 29 of the POCSO Act to convict the Appellant

The Appellant challenged the judgment on grounds of failure to prove the victim's age, discrepancies in testimony, and lack of medical corroboration

1. Whether the prosecution proved the victim was a "child" as defined under Section 2(d) of the POCSO Act by following the mandatory procedure under Section 94 of the JJ Act

2. Whether the testimony of the victim (PW2) was of "sterling quality" and reliable, given the contradictions between her Section 164 Cr.P.C. statement and trial testimony

3. Whether the prosecution established the "foundational facts" necessary to invoke the statutory presumption under Section 29 of the POCSO Act

The court primarily applied Section 2(d) of the POCSO Act, which defines a child as any person below the age of 18

For age determination, the court relied on Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which mandates a hierarchical preference for evidence: (i) school/matriculation certificates, (ii) municipal birth certificates, and (iii) ossification tests only in the absence of the former

The court cited Yuvaprakash v. State of Tamil Nadu (2024) 17 SCC 684, reinforcing that these steps are mandatory for victims under the POCSO Act

the court applied the principle that the presumption of guilt under Section 29 of the POCSO Act is triggered only after the prosecution proves the "foundational facts" of the case

The High Court found that the prosecution failed to mark any admissible document (school or birth certificate) to prove the victim was below 18 years, despite such records existing, which violated the mandatory requirements of Section 94 of the JJ Act

Regarding the assault, the court observed a "glaring discrepancy" between the victim’s Section 164 statement, where she alleged only "touching," and her trial testimony, which was "improvised and exaggerated" to include penetration

This led the court to conclude the witness had been tutored

On medical evidence, the court noted that the chemical analysis (Ex.P9) was negative for semen

the medical certificate (Ex.P7) suggesting sexual assault was issued seven months after the initial examination, while the Doctor (PW11) admitted the ruptured hymen could have been caused by cycling

the court held that since the foundational facts (age and the act) were not proved, the trial court erred in shifting the burden of proof to the accused via Section 29

The court concluded that the prosecution failed to prove the victim was a child under the POCSO Act and failed to establish the charges of sexual assault

The conviction and sentence dated 17.11.2021 were set aside, the Appellant was acquitted of all charges, and the court ordered the refund of any fines paid and the cancellation of bail bonds